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SUPREME COURT REPORTS ANNOTATED VOLUME 136
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Case Title:
LORENZO M. TAÑADA, ABRAHAM F.
SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners, vs. HON.
JUAN C. TUVERA, in his capacity as
Executive Assistant to the President,
HON. JOAQUIN VENUS, in his
capacity as Deputy Executive
Assistant to the President,
MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacañang
Records Office, and FLORENDO S.
PABLO, in his capacity as Director,
Bureau of Printing, respondents.
Citation: 136 SCRA 27
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*
No. L-63915. April 24, 1985.
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as
Director, Bureau of Printing, respondents.
_______________
* EN BANC.
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28 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
Mandamus; Private individuals who seek to procure the enforcement of a public duty (e.g.
the publication in the Official Gazette of Presidential Decrees, LOI, etc.) are real parties in
interest in mandamus case.·The reasons given by the Court in recognizing a private citizenÊs
legal personality in the aforementioned case apply squarely to the present petition. Clearly, the
right sought to be enforced by petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the same, considering that
the Solicitor General, the government officer generally empowered to represent the people, has
entered his appearance for respondents in this case.
Same; Statutes; Fact that a Presidential Decree or LOI states its date of effectivity does not
preclude their publication in the Official Gazette as they constitute important legislative acts,
particularly in the present situation where the President may on his own issue laws.·The clear
object of the above-quoted provision is to give the general public adequate notice of the various
laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim „ignorantia legis non
excusat.‰ It would be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a constructive one.
Same; Same; Same.·Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital significance than at this time when the
people have bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and deliberations in the
Batasan Pambansa·and for the diligent ones, ready access to the legislative records·no such
publicity accompanies the law-making process of the President. Thus, without publication, the
people have no means of knowing what presidential decrees have actually been promulgated,
much less a definite way of informing themselves of the specific contents and texts of such
decrees. As the Supreme Court of Spain ruled: „Bajo la denoroinación genérica de leyes, se
comprenden también los reglamentos, Reales decretos, Instrucciones, Circulares y Reales
ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.‰
Same; Same; C.A. 638 imposes a duty for publication of Presidential decrees and issuances
as it uses the words „shall be
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VOL. 136, APRIL 24, 1985 29
Tañada vs. Tuvera
published.‰·The very first clause of Section 1 of Commonwealth Act 638 reads: „There shall be
published in the Official Gazette x x x.‰ The word „shall‰ used therein imposes upon respondent
officials an imperative duty. That duty must be enforced if the Constitutional right of the
people to be informed on matters of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official Gazette. Such listing, to our
mind, leaves respondents with no discretion whatsoever as to what must be included or
excluded from such publication.
Same; Same; But administrative and executive orders and those which affect only a
particular class of persons need not be published.·The publication of all presidential issuances
„of a public nature‰ or „of general applicability‰ is mandated by law. Obviously, presidential
decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a
burden on the people, such as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have
been circularized to all concerned.
Same; Same; Due Process; Publication of Presidential decrees and issuances of general
application is a matter of due process.·It is needless to add that the publication of presidential
issuances „of a public nature‰ or „of general applicability‰ is a requirement of due process. It is
a rule of law that before a person may be bound by law, he must first be officially and
specifically informed of its contents.
Same; Same; Same; Presidential Decrees and issuances of general application which have
not been published shall have no force and effect.·The Court therefore declares that
presidential issuances of general application, which have not been published, shall have no
force and effect. Some members of the Court, quite apprehensive about the possible unsettling
effect this decision might have on acts done in reliance of the validity of those presidential
decrees which were published only during the pendency of this petition, have put the question
as to whether the CourtÊs declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in
the past this Court had taken the pragmatic and realistic course set forth in Chicot County
Drainage District vs. Baxter Bank.
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30 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
Same; Same; Same; Implementation of Presidential Decrees prior to their publication in the
Official Gazette may have consequences which cannot be ignored.·Similarly, the
implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is „an operative fact which may have consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial declaration x x x that an all-inclusive statement
of a principle of absolute retroactive invalidity cannot be justified.‰
Same; Same; Same; Only P.D. Nos. 1019 to 1030, 1278 and 1937 to 1939, inclusive, have
not been published. It is undisputed that none of them has been implemented.·From the report
submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought
by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to
1030, inclusive. 1278, and 1937 to 1939, inclusive, have not been so published. Neither the
subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these
unpublished PDs has ever been implemented or enforced by the government.
FERNANDO, C.J., concurring with qualification:
Statutes; Due Process; I am unable to concur insofar as the opinion written by Justice
Escolin would unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished Presidential issuances to have a binding force and effect.·It is of course true that
without the requisite publication, a due process question would arise if made to apply
adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is to be admitted. It does not follow, however, that failure
to do so would in all cases and under all circumstances result in a statute, presidential decree
or any other executive act of the same category being bereft of any binding force and effect. To
so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself
to the interpretation that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such requirement in the
Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past „presidential issuances.‰
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VOL. 136, APRIL 24, 1985 31
Tañada vs. Tuvera
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to
what is required for any statute or presidential act to be impressed with binding force or
effectivity.
Same; Same; The Civil Code rule on publication of statutes is only a legislative enactment
and does not and cannot have the force of a constitutional command A later executive or
legislative act can fix a different rule.·Let me make clear therefore that my qualified
concurrence goes no further than to affirm that publication is essential to the effectivity of a
legislative or executive act of a general application. I am not in agreement with the view that
such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, „unless it is otherwise
provided.‰ Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386.
It does not and cannot have the juridical force of a constitutional command. A later legislative
or executive act which has the force and effect of law can legally provide for a different rule.
Same; Same; I am unable to agree that decrees not published are devoid of any legal
character.·Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously published in the
Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore
unable to yield assent to such a pronouncement.
TEEHANKEE, J., concurring:
Statutes; Unless laws are published there will no basis for the rule that ignorance of the law
excuses no one from compliance therewith.·Without official publication in the Official Gazette
as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be
no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the public and official
repository where they are duly published) that „Ignorance of the law excuses no one from
compliance therewith.‰
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32 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
Same; RespondentÊs theory that a Presidential Decree that fixes its date of effectivity need
not be published misreads Art. 2 of the Civil Code.·RespondentsÊ contention based on a
misreading of Article 2 of the Civil Code that „only laws which are silent as to their effectivity
[date] need be published in the Official Gazette for their effectivity‰ is manifestly untenable.
The plain text and meaning of the Civil Code is that „laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise
provided,‰ i.e. a different effectivity date is provided by the law itself. This proviso perforce
refers to a law that has been duly published pursuant to the basic constitutional requirements
of due process. The best example of this is the Civil Code itself: the same Article 2 provides
otherwise that it „shall take effect [only] one year [not 15 days] after such publication.‰ To
sustain respondentsÊ misreading that „most laws or decrees specify the date of their effectivity
and for this reason, publication in the Official Gazette is not necessary for their effectivity‰
would be to nullify and render nugatory the Civil CodeÊs indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the completion of 15
days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.
MELENCIO-HERRERA, J., concurring:
Statutes; When a date of effectivity is mentioned in the Decree, but becomes effective only 15
days after publication in the Gazette, it will not mean that the Decree can have retroactive effect
to the expressed date of effectivity.·I agree. There cannot be any question but that even if a
decree provides for a date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is mentioned in the decree
but the decree becomes effective only fifteen (15) days after its publication in the Official
Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity
mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.
PLANA, J., separate opinion:
Constitutional Law; Statutes; Due Process; The Constitution does not require prior
publication for laws to be effective and while
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VOL. 136, APRIL 24, 1985 33
Tañada vs. Tuvera
due process require prior notice, such notice is not necessarily publication in the Official Gazette.
·The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. It may be said though that the
guarantee of due process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette. The due
process clause is not that precise. Neither is the publication of laws in the Official Gazette
required by any statute as a prerequisite for their effectivity, if said laws already provide for
their effectivity date.
Same; Same; Same; C.A. 638 does not require Official Gazette publication of laws for their
effectivity.·Commonwealth Act No. 638, in my opinion, does not support the proposition that
for their effectivity, laws must be published in the Official Gazette. The said law is simply „An
Act to Provide for the Uniform Publication and Distribution of the Official Gazette.‰
Conformably therewith, it authorizes the publication of the Official Gazette, determines its
frequency, provides for its sale and distribution, and defines the authority of the Director of
Printing in relation thereto. It also enumerates what shall be published in the Official Gazette,
among them, „important legislative acts and resolutions of a public nature of the Congress of
the Philippines‰ and „all executive and administrative orders and proclamations, except such
as have no general applicability.‰ It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only „important‰ ones „of a public nature.‰ Moreover, the
said law does not provide that publication in the Official Gazette is essential for the effectivity
of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act No. 638, cannot
nullify or restrict the operation of a subsequent statute that has a provision of its own as to
when and how it will take effect. Only a higher law, which is the Constitution, can assume that
role.
PETITION to review the decision of the Executive Assistant to the President.
The facts are stated in the opinion of the Court.
ESCOL1N, J.:
Invoking the peopleÊs right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of
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34 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
1
the 1973 Philippine Constitution, as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public
officials to publish, and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations, executive
orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-
1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150,
153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248-251, 253-261, 263-269, 271-273, 275-
283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349,
357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-445, 473,
486, 488, 498, 501. 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964, 997, 1149-1178, 1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600,
1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-
1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795,
1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-
1832, 1835-1836, 1839-
_______________
1 „Section 6. The right of the people to information on matters of public concern shall be recognized,
access to official records, and to documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizens subject to such limitation as may be provided by law.‰
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VOL. 136, APRIL 24, 1985 35
Tañada vs. Tuvera
1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-
1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611-647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-
81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to bring
the instant petition. The view is submitted that in the absence of any showing that
petitioners are personally and directly affected or2 prejudiced by the alleged non-
publication of the presidential issuances in question said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being
„aggrieved parties‰ within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:
„SEC. 3. Petition for Mandamus.·When any tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified time, to do the act required
to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.‰
_______________
Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aldanese, 45 Phil. 345; Almario vs. City
2
Mayor, 16 SCRA 151; Palting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.
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36 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public duty,
they need not show any specific interest for their petition to be given due course.
The issue posed is not
3
one of first impression. As early as the 1910 case of Severino
vs. Governor General, this Court held that while the general rule is that „a writ of
mandamus would be granted to a private individual only in those cases where he has
some private or particular interest to be subserved, or some particular right to be
protected, independent of that which he holds with the public at large,‰ and „it is for
the public officers exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469‰, nevertheless, „when the question is
one of public right and the object of the mandamus is to procure the enforcement of a
public duty, the people are regarded as the real party in interest and the relator at
whose instigation the proceedings are instituted need not show that he has any legal
or special interest in the result, it being sufficient to show that he is a citizen and as
such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd
ed., sec. 431].‰
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel the
Governor General to call a special election for the position of municipal president in
the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T.
Trent said:
„We are therefore of the opinion that the weight of authority supports the proposition that the
relator is a proper party to proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think that it would not be
applicable to the case at bar for the reason Âthat it is always dangerous to apply a general rule
to a particular case without keeping in mind the reason for the rule, because, if under the
particular circumstances the reason for the rule does not exist, the rule itself is not applicable
and reliance upon the rule may well lead to error.Ê
_______________
3 16 Phil. 366, 378.
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VOL. 136, APRIL 24, 1985 37
Tañada vs. Tuvera
„No reason exists in the case at bar for applying the general rule insisted upon by counsel for
the respondent. The circumstances which surround this case are different from those in the
United States, inasmuch as if the relator is not a proper party to these proceedings no other
person could be, as we have seen that it is not the duty of the law officer of the Government to
appear and represent the people in cases of this character.‰
The reasons given by the Court in recognizing a private citizenÊs legal personality in
the aforementioned case apply squarely to the present petition. Clearly, the right
sought to be enforced by petitioners herein is a public right recognized by no less than
the fundamental law of the land. If petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the government officer generally
empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine
qua non requirement for the effectivity of laws where the laws themselves provide for
their own effectivity dates. It is thus submitted that since the presidential issuances in
question contain special provisions as to the date they are to take effect, publication in
the Official Gazette is not indispensable for their effectivity. The point stressed is
anchored on Article 2 of the Civil Code:
„Art. 2. Laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, x x x‰
The interpretation given by respondent4 is in accord with this CourtÊs construction of
said article. In a long line of decisions, this Court has ruled that publication in the
Official Gazette is necessary in those cases where the legislation itself does not provide
for its effectivity date·for then the date of
_______________
4 Camacho vs. Court of Industrial Relations, 80 Phil. 848; Mejia vs. Balolong, 81 Phil. 486; Republic of
the Philippines vs. Encarnacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System,
17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.
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38 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
publication is material for determining its date of effectivity, which is the fifteenth day
following its publication·but not when the law itself provides for the date when it
goes into effect.
RespondentsÊ argument, however, is logically correct only insofar as it equates the
effectivity of laws with the fact of publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily reached that said Article 2 does
not preclude the requirement of publication in the Official Gazette, even if the law
itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638
provides as follows:
„Section 1. There shall be published in the Official Gazette [1] all important legislative acts and
resolutions of a public nature of tne Congress of the Philippines; [2] all executive and
administrative orders and proclamations, except such as have no general applicability: [3]
decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4] such documents or classes
of documents as may be required so to be published by law; and [5] such documents or classes
of documents as the President of the Philippines shall determine from time to time to have
general applicability and legal effect, or which he may authorize so to be published. x x x‰
The clear object of the above-quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of the
maxim „ignorantia legis non excusat.‰ It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and deliberations
in the Batasan Pambansa·and for
39
VOL. 136, APRIL 24, 1985 39
Tañada vs. Tuvera
the diligent ones, ready access to the legislative records·no such publicity
accompanies the law-making process of the President. Thus, without publication, the
people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of Spain ruled: „Bajo la denominación
genérica de leyes, se comprenden también los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines
5
dietadas de conformidad con las mismas por
el Gobierno en uso de su potestad.‰
The very first clause of Section 1 of Commonwealth Act 638 reads: „There shall be
published in the Official Gazette x x x.‰ The word „shall‰ used therein imposes upon
respondent officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern is to be
given substance and reality. The law itself makes a list of what should be published in
the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances „of a public nature‰ or „of general
applicability‰ is mandated by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or otherwise impose a burden on the
people, such as tax and revenue measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not 6
be published on the assumption that
they have been circularized to all concerned.
It is needless to add that the publication of presidential issuances „of a public
nature‰ or „of general applicability‰ is a requirement of due process. It is a rule of law
that before a person may be bound by law, he must first be officially and specifically
informed of its contents. As Justice Claudio
_______________
5 1 Manresa, Codigo Civil, 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150.
40
40 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
7
Teehankee said in Peralta vs. COMELEC :
„In a time of proliferating decrees, orders and letters of instructions which all form part of the
law of the land, the requirement of due process and the Rule of Law demand that the Official
Gazette as the official government repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may know where to obtain their official and
specific contents.‰
The Court therefore declares that presidential issuances of general application, which
have not been published, shall have no force and effect. Some members of the Court,
quite apprehensive about the possible unsettling effect this decision might have on
acts done in reliance of the validity of those presidential decrees which were published
only during the pendency of this petition, have put the question as to whether the
CourtÊs declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic
8
and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank to wit:
„The courts below have proceeded on the theory that the Act of Congress, having been found to
be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing
no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however,
that such broad statements as to the effect of a determination of unconstitutionality must be
taken with qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects·with respect to particular conduct,
private and official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public policy in the light
of the nature both of the statute and of its previous application, demand examination. These
ques-
_______________
7 82 SCRA 30, dissenting opinion.
8 308 U.S. 371, 374.
41
VOL. 136, APRIL 24, 1985 41
Tañada vs. Tuvera
tions are among the most difficult of those which have engaged the attention of courts, state
and federal, and it is manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.‰
9
Consistently with the above principle, this Court in Rutter vs. Esteban sustained the
right of a party under the Moratorium Law, albeit said right had accrued in his favor
before said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is „an operative fact which may have consequences
which cannot be justly ignored. The past cannot always be erased by a new judicial
declaration x x x that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified.‰
From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 101910
to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. Neither the subject matters nor the texts of these PDs
can be ascertained since no copies thereof are available. But whatever their subject
matter may be, it is undisputed that none of these unpublished PDs has 11
ever been
implemented or enforced by the government. In Pesigan vs. Angeles, the Court,
through Justice Ramon Aquino, ruled that „publication is necessary to apprise the
public of the contents of [penal] regulations and make the said penalties binding on
the persons affected thereby.‰ The cogency of this holding is apparently recognized by
respondent officials considering the manifestation in their comment that „the
government, as a matter of policy, refrains
_______________
93 Phil. 68.
9
The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the
10
Government Printing Office, failed to respond to her letter-request regarding the respective dates of
publication in the Official Gazette of the presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or non-publication of other presidential issuances.
11 129 SCRA 174.
42
42 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
from prosecuting violations of criminal laws until the same shall have been published
in the Official Gazette or in some other publication, even though some criminal laws
provide that they shall take effect immediately.‰
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general application, and
unless so published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concur.
Fernando, C.J., concurs in a separate opinion expressing the view that without
publication, a due process question may arise but that such publication need not be in
the Official Gazette. To that extent he concurs with the opinion of Justice Plana.
Teehankee, J., files a brief concurrence.
Makasiar, J., concurs in the opinion of Chief Justice Fernando.
Aquino, J., no part.
Concepcion, Jr., J., on leave.
Abad Santos, J., I concur in the separate opinion of the Chief Justice.
Melencio-Herrera, J., see separate concurring opinion.
Plana, J., see separate opinion.
Gutierrez, Jr., J., I concur insofar as publication is necessary but reserve my
vote as to the necessity of such publication being in the Official Gazette.
De la Fuente, J., Insofar as the opinion declares the unpublished decrees and
issuances of a public nature or general applicability ineffective, until due publication
thereof.
Cuevas, J., I concur in the opinion of the Chief Justice and Justice Plana.
Alampay, J., I subscribe to the opinion of Chief Justice Fernando and Justice
Plana.
43
VOL. 136, APRIL 24, 1985 43
Tañada vs. Tuvera
FERNANDO, C.J., concurring with qualification:
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would
unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished „presidential issuances‰ to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even
aware of the existence of any legislative or executive act having the force and
effect of law. My point is that such publication required need not be confined to
the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does not follow,
however, that failure to do so would in all cases and under all circumstances
result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me,
raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the
attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It
is true that what is decided now applies only to past „presidential issuances.‰
Nonetheless, this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what to me is the constitutional doctrine
applicable to this case. Thus: „The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound
thereby; but such
44
44 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
notice is not necessarily by publication
1
in the Official Gazette. The due process
clause is not that precise.‰ I am likewise in agreement with its closing
paragraph: „In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person should be bound by
a law without notice. This is elementary fairness. However, I beg to disagree
insofar as2
it holds that such notice shall be by publication in the Official
Gazette.‰
3. It suffices, as was stated by Judge Learned Hand, that law as the command of
the 3government „must be ascertainable in some form if it is to be enforced at
all.‰ It would indeed be to reduce it to the level of mere4 futility, as pointed out
by Justice Cardozo, „if it is unknown and unknowable.‰ Publication, to repeat,
is thus essential. What I am not prepared to subscribe to is the doctrine that it
must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me
that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it
could be that parties aware of their existence could have conducted themselves
in accordance with their provisions. If no legal consequences could attach due
to lack of publication in the Official Gazette, then serious problems could arise.
Previous transactions based on such „Presidential Issuances‰ could be open to
question. Matters deemed settled could still be inquired into. I am not
prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal 5
prosecution, then, of course, its ex post facto character becomes evident. In
civil cases though, retroac-
_______________
Separate Opinion of Justice Plana, first paragraph. He mentioned in this connection Article 7, Sec. 21
1
of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the
Constitution of Indiana, U.S.A.
2 Ibid, closing paragraph.
3 Learned Hand, The Spirit of Liberty 104 (1960).
4 Cardozo, The Growth of the Law, 3 (1924).
5 Cf. Nuñez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433.
45
VOL. 136, APRIL 24, 1985 45
Tañada vs. Tuvera
tivity as such is not conclusive on the due process aspect There must still be a
showing of arbitrariness. Moreover, where the challenged presidential decree
or executive act was issued under the police power, the non-impairment clause
of the Constitution may not always be successfully invoked. There must still be
that process of balancing
6
to determine whether or not it could in such a case be
tainted by infirmity. In traditional terminology, there could arise then a
question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive
act of a general application. I am not in agreement with the view that such
publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject
to this exception, „unless it is otherwise provided.‰ Moreover, the Civil Code is
itself only a legislative enactment, Republic Act No. 386. It does not and cannot
have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously
published in the Official Gazette would be devoid of any legal character. That
would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to
such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
_______________
6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.
46
46 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of
Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published
and ascertainable and of equal application to all similarly circumstanced and not
subject to arbitrary change but only under certain set procedures. The Court has
consistently stressed that „it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the1 people who are
commanded to obey before they can be punished for its violation,‰ citing the settled
principle based on due process enunciated in earlier cases that „before the public is
bound by its contents, especially its penal provisions, a law, regulation or circular
must first be published and the people officially and specially informed of said
contents and its penalties.‰
Without official publication in the Official Gazette as required by Article 2 of the
Civil Code and the Revised Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the Civil Code (based on constructive
notice that the provisions of the law are ascertainable from the public and official
repository where they are duly published) that „Ignorance of the law excuses no one
from compliance therewith.‰
RespondentsÊ contention based on a misreading of Article 2 of the Civil Code that
„only laws which are silent as to their effectivity [date] need be published in the
Official Gazette for their effectivity‰ is manifestly untenable. The plain text and
meaning of the Civil Code is that „laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided,‰
i.e. a different effectivity date is provided by the law itself. This proviso perforce refers
to a law that has been duly published pursuant to the basic constitutional
requirements of due process. The best example of this is the Civil Code itself: the same
Article 2 provides otherwise that it „shall take effect [only] one
_______________
1 People vs. de Dios, G.R. No. 11003, Aug. 31, 1959, per the late Chief Justice Paras.
47
VOL. 136, APRIL 24, 1985 47
Tañada vs. Tuvera
2
year [not 15 days] after such publication.‰ To sustain respondentsÊ misreading that
„most laws or decrees specify the date of their effectivity and for 3 this reason,
publication in the Official Gazette is not necessary for their effectivity‰ would be to
nullify and render nugatory the Civil CodeÊs indispensable and essential requirement
of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it
will not mean that the decree can have retroactive effect to the date of effectivity
mentioned in the decree itself. There should be no retroactivity if the retroactivity will
run counter to constitutional rights or shall destroy vested rights.
SEPARATE OPINION
PLANA, J.:
The Philippine Constitution does not require the publication
**
of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. It may be said though that
the guarantee of due process requires notice of laws to affected op
_______________
Notes in brackets supplied.
2
RespondentsÊ comment, pp. 14-15.
3
** See e.g., Wisconsin Constitution. Art. 7, Sec. 21: „The legislature shall provide publication of all
statute laws . . . and no general law shall be in force until published.‰ See also State ex rel. White vs.
Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A.
48
48 SUPREME COURT REPORTS ANNOTATED
Tañada vs. Tuvera
parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither
is the publication of laws in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that „laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided.‰ Two things may be said of this provision: Firstly, it obviously does
not apply to a law with a built-in provision as to when it will take effect. Secondly, it
clearly recognizes that each law may provide not only a different period for reckoning
its effectivity date but also a different mode of notice. Thus, a law may prescribe that
it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that
for their effectivity, laws must be published in the Official Gazette. The said law is
simply „An Act to Provide for the Uniform Publication and Distribution of the Official
Gazette.‰ Conformably therewith, it authorizes the publication of the Official Gazette,
determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall
be published in the Official Gazette, among them, „important legislative acts and
resolutions of a public nature of the Congress of the Philippines‰ and „all executive
and administrative orders and proclamations, except such as have no general
applicability.‰ It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only „important‰ ones „of a public nature.‰ Moreover, the
said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the
same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a
higher law, which is the Constitution, can assume that role.
49
VOL. 136, APRIL 25, 1985 49
In Re: Milagros Santia
In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice
shall be by publication in the Official Gazette.
Respondents ordered to publish all unpublished presidential issuances in the
Official Gazette.
··o0o··